STATE OF NEW JERSEY v. CARLOS CAMACHO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5189-07T45189-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLOS CAMACHO,

Defendant-Appellant.

_________________________________________

 

Argued January 11, 2010 - Decided

Before Judges Rodr guez and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 01-06-0660.

Shay S. Deshpande, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Deshpande, of counsel and on the brief).

Keith E. Hoffman, Special Deputy Attorney General/Acting Senior Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Mr. Hoffman, on the brief).

PER CURIAM

Defendant Carlos Camacho appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.

In 2003, following a jury trial, defendant was convicted of first degree murder of Victor Pachas, N.J.S.A. 2C:11-3a(1); third degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth degree unlawful possession of a knife, N.J.S.A. 2C:39-5d. Judge Ronald G. Marmo merged the three convictions and imposed a thirty-year term with a thirty-year parole disqualifier. On direct appeal, we affirmed, but preserved the ineffective assistance claim for PCR. State v. Camacho, No. A-4612-02T4 (App. Div. Dec. 30, 2004), certif. denied, 183 N.J. 257 (2005).

The evidence is set forth in our opinion on direct appeal. These are the salient facts. On February 24, 2001, Pachas went to a social club in Paterson with his friend Alejandro Fernandez. As he did often in the evenings, Pachas was dressed as a woman and wore a wig, makeup, jewelry, brown skirt, brown blouse and high heals. Pachas normally dressed as a man during the daytime. Pachas and Fernandez consumed two to three pitchers of beer along with two other friends. Fernandez dropped Pachas off at his apartment between 3:10 and 3:30 a.m. on the morning of February 25, 2001. Fernandez advised Pachas not to go out because there was "crack heads and crazy people" on the streets. He did this because Pachas would solicit strangers and bring them back to his apartment. After Fernandez left, Pachas drove to Slater Street, which is a known homosexual pick-up area.

Hilda Teran, a resident who lived in Pachas's apartment building, testified that she heard a cry for help three times in Spanish at approximately 4:00 a.m. on February 25, 2001. Teran did not contact the police. At around 5:00 a.m., Teran heard someone run down the stairs and exit the building.

Rafael Leureyro, who also lives in the building, testified that he heard loud noises and described the noise as wheels rolling. Leureyro also heard a woman crying for help. He called the police and fell asleep. That morning, Leureyro called Pachas. After receiving no answer, he contacted the apartment owner. He also went to Pachas's apartment and entered after realizing that the door was unlocked. He saw blood. His friend Ivan called the police.

Paterson Police Officer Buchanan testified that he found Pachas's body and a knife blade. Buchanan observed that: the bedroom walls, ceiling and door jambs were covered in blood; the bed and sheets were soaked with blood; and the kitchen floor and carpet were covered in bloody footprints. The medical examiner testified that that the neck injuries sustained by Pachas were consistent with strangulation and opined that the cause of death was "asphyxia due to strangulation and blunt and sharp force injuries of his head and chest."

Several weeks later, defendant's sister, Maleni, informed Paterson Police Detective Colon that defendant had been involved in a murder and was in Puerto Rico, but wanted to return. Colon traveled to Puerto Rico and arrested defendant with the assistance of Puerto Rican authorities. Defendant was taken to police headquarters in Puerto Rico. Colon advised him of his Miranda warnings. Defendant agreed to provide a formal handwritten statement about Pachas's death. According to the statement, in the early morning hours of February 25, 2001, defendant visited his friend Ramon Rivera, nicknamed "Cito," at his house on Slater Street. Defendant left Cito's house and on his way home, he was called by Pachas, who was dressed as a female and parked on the street. Pachas offered him $20 to have sex.

Defendant got into Pachas's vehicle and asked to be driven to a place to purchase a "bag of marijuana." After entering the apartment, Pachas went into the bathroom. When he walked out of the bathroom, he exposed his genitals to defendant. Defendant became angry and began to dress himself. Defendant had a knife in his jacket which was visible. He believed that Pachas was going to grab the knife and use it against him.

According to defendant, Pachas said "you came prepared." Defendant grabbed the knife, punched Pachas and then stabbed him once in the back. The blade broke and defendant removed the bare blade. The two struggled in Pachas's bedroom. Defendant punched and stabbed Pachas several times in the face. Defendant stepped on Pachas's throat to "shut him up." Pachas was still breathing when defendant left the apartment.

Defendant then walked home. The door to his apartment was locked, requiring defendant to knock. His mother opened the door. Defendant's mother called Meleni, his sister. Maleni testified that defendant was covered in blood, bruised and his fingers were cut. Defendant told Maleni that he had been mugged. Meleni and her mother removed defendant's clothing and placed the knife handle in a black plastic bag and threw them away.

Eventually, defendant told Maleni and his mother the events surrounding Pachas's death. Defendant told them that he smeared blood all over Pachas's apartment to make it appear as if a "crazy person did it." According to Maleni, it was defendant's habit to carry a weapon because the neighborhood was dangerous. Defendant's mother purchased an airplane ticket to Puerto Rico. Defendant left.

After defendant's direct appeal was affirmed, he filed his first PCR petition. An Assistant Deputy Public Defender filed a supplemental brief. Judge Marmo denied the petition.

On appeal, defendant contends that:

THE APPELLATE DIVISION SHOULD GRANT DEFENDANT A NEW TRIAL BECAUSE THE TRIAL COURT FAILED TO INSTRUCT THE JURY SUA SPONTE ON THE LESSER INCLUDED CHARGES OF AGGRAVATED AND RECKLESS MANSLAUGHTER IN LIGHT OF THE STATE V. O'CARROLL DECISION.

We disagree.

Defendant argues that O'Carroll provides the authority to overturn the trial judge's failure to charge the jury with the lesser included offenses of aggravated and reckless manslaughter. We reject defendant's claim because it is barred, having been adjudicated on the merits on direct appeal. R. 3:22-5; State v. Franklin, 184 N.J. 516, 528 (2005). We held on direct appeal that the record did not contain proof of accidental rather than intentional conduct, basing this decision on the severity and number of the stab wounds inflicted by defendant on Pachas; as well as the crushing of Pachas's throat.

Defendant also contends:

DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

He argues that his trial attorney failed to: perform appropriate pretrial investigation; challenge the grand jury array; request voir dire of jurors regarding bias against a Hispanic defendant; adequately argue the motion to dismiss at the end of the State's case; failed to submit to the court the appropriate requests to charge; request an instruction for the lesser-included offenses of aggravated manslaughter, reckless manslaughter, and self-defense and/or imperfect self-defense. He also argues that trial counsel conceded defendant's guilt during summation. We are not persuaded.

New Jersey follows the federal rule in evaluating an ineffective assistance of counsel claim. State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the United States Supreme Court test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Therefore, in order to establish a prima facie case for ineffective assistance of counsel, the defendant must demonstrate a reasonable likelihood of succeeding under the test set forth in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This test establishes a two-pronged analysis. Ibid. The first prong requires the defendant to demonstrate that counsel's performance was deficient. Ibid. The second prong requires the defendant to demonstrate he was prejudiced by counsel's deficient performance.

Here, we conclude that defendant has not satisfied his burden. The first argument is that trial counsel failed to adequately perform pretrial investigation, specifically defendant not interviewing witnesses Cito and Maleni. Defendant argues that interviewing Cito would have corroborated defendant's statement and provided credibility for his explanation of why he was in the area and rebutted any inference that he was a male prostitute. However, how defendant came to meet Pachas was irrelevant. The evidence established that, after meeting Pachas, defendant accepted an invitation to Pachas's apartment.

Moreover, Cito stated in a certification that defendant left his apartment at "approximately 2:15 - 2:30 a.m." The evidence at trial established that defendant first met Pachas after 3:30 a.m. Thus, Cito's testimony would have impeached defendant's statement that he was immediately approached by Pachas. Trial counsel was therefore not ineffective for failing to submit evidence that would contradict or impeach his client's testimony.

Defendant also argues that interviewing Meleni would have revealed information that defendant had been sexually abused by their biological father, supporting imperfect self-defense. We agree with Judge Marmo that this evidence would not have exculpated defendant by establishing a self-defense scenario.

Trial counsel certified that he did interview Maleni regarding sexual abuse. This interview disclosed that the alleged conduct of defendant's father did not rise to the level of providing a basis for justifying or explaining the conduct of defendant in the early morning hours of February 25, 2001. Thereafter, his trial attorney spoke to defendant concerning the "pros and cons" of eliciting such testimony. According to his trial attorney, it was defendant's decision not to utilize such a strategy. Thus, trial attorney's certification refutes defendant's contention.

In addition, defendant cannot establish that he was "prejudiced" by his trial attorney's failure to elicit such testimony. Defendant cannot establish a reasonable probability that, but for trial attorney's failure to present testimony regarding the alleged sexual abuse, defendant would have been convicted of aggravated or reckless manslaughter in light of the overwhelming evidence produced at trial. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Defendant next argues that his trial attorney should have challenged the Passaic County Grand Jury array because it did not adequately represent the Hispanic population. We note that this contention was withdrawn by PCR counsel. It is settled that "[t]he equal-protection clause requires that petit-juror selection be 'free from any taint of discriminatory purpose.'" State v. Hightower, 120 N.J. 378, 400 (1990) (quoting State v. Ramseur, 106 N.J. 123, 215 (1987)).

Here, defendant has presented no evidence except for bare allegations that the Grand and Petit juries were underrepresented. Defendant therefore has not established a prima facie case. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Further, we have recognized that absent racial overtones or potential prejudice, voir dire of jurors regarding racial prejudice is unnecessary. State v. Long, 137 N.J. Super. 124, 130-31 (App. Div. 1975), certif. denied, 70 N.J. 143 (1976). We also note that this was not a case involving an inter-ethnic crime. See State v. Sims, 140 N.J. Super. 164, 173 (App. Div. 1976). Defendant and Pachas were both of Hispanic ethnicity. The lead detective, Nicholas Colon, was Hispanic; as well as Colon, Fernandez, Teran, Leureyro, and others involved in the investigation. Thus, this contention lacks merit.

Defendant also faults his trial attorney for failing to argue the motion to dismiss the charge of possession of a weapon for an unlawful purpose at the close of the State's case and that defendant was in possession of the knife for his own protection.

We reject these arguments, agreeing with Judge Marmo that the record established that defendant used a weapon for an unlawful purpose. Defendant admitted in his statement that he carried the knife to protect himself from others in his neighborhood. However, he also admitted that Pachas did not attack him. Defendant merely thought that Pachas might take the knife from him. Forensic evidence established that defendant did not stab Pachas merely once to subdue the threat that he perceived. Instead, he stabbed Pachas repeatedly. The record therefore refutes defendant's contentions.

Moreover, whether defendant did in fact possess the knife for a lawful purpose was an issue for the jury to decide. Thus, defendant cannot demonstrate that, but for defendant's failure to specifically mention defendant's sworn statement, that there was a reasonable probability that the judge would have dismissed count two.

Defendant next argues that trial counsel provided ineffective assistance: by conceding defendant's guilt; such tactic precluded the jury from considering self-defense or imperfect self-defense; and this error was compounded by trial attorney's failure to request jury instructions on self-defense and imperfect self-defense and the lesser included offenses of reckless and aggravated manslaughter.

Defendant's contention that trial counsel was ineffective for failing to seek lesser included offenses and arguing self defense is "substantially equivalent" to the issue presented to us and adjudicated on direct appeal. This claim is therefore barred on PCR. R. 3:22-5.

Defendant also contends:

APPELLANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

We disagree.

A defendant is entitled to effective assistance of counsel on appeal. State v. Morrison, 215 N.J. Super. 540, 545-46 (App. Div.), certif. denied, 107 N.J. 642 (1987). Ineffective assistance of appellate counsel claims are also governed by the Strickland standard. Id. at 546. Appellate counsel, however, is not ineffective for failing to raise every issue imaginable. Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3309, 3312, 77 L. Ed. 2d 987, 993 (1983). The practice of appellate counsel in focusing on arguments more likely to prevail at the expense of weaker arguments is considered the hallmark of effective appellate advocacy. Id. at 751-52, 103 S. Ct. at 3312, 77 L. Ed. 2d at 994.

Here, appellant counsel did in fact raise an ineffective assistance of counsel claim and we reserved the claim for PCR. This is consistent with the accepted principle that when a defendant's claim implicates issues of trial strategy and involves allegations and evidence outside the trial record, it should be raised in an application for PCR. State v. Preciose, 129 N.J. 451, 460 (1992).

 
Affirmed.

Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1412, 16 L. Ed. 2d 694, 707 (1966).

385 N.J. Super. 211 (App. Div.), certif. denied, 188 N.J. 489 (2006).

(continued)

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A-5189-07T4

 

August 16, 2010